"In God We Trust" and the Fraud of Ceremonial Deism

How is it that the federal government can establish "In God We Trust" as our national motto, print IGWT on our currency and engrave it on our coins, have a Pledge of Allegiance with "one nation under God", military bands play God Bless America, etc.

The answer is quite simple: tyranny of the majority.  While the First Amendment prohibits government sponsorship of religion (i.e. establishments of religion), presidents, congressmen and women and judges and justices lack the courage to enforce it or, worse, are part of the problem.

In the last two weeks, we have two federal court cases with astonishing different results. First, on October 6, courageous U.S. District Court Judge Barbara B. Crabb held that the "parsonage allowance" found in I.R.C. Sec. 107(2) violated the Establishment Clause. The parsonage allowance provision allows "ministers of the gospel" (broadly construed by IRS) to exempt from their income taxes allowances for their housing -- including for mansions, swimming pools and lawn care -- while disallowing the exemption for similarly situated secular persons. Excellent decision in Gaylor v. Mnuchin (W.D. Wisc. Oct. 6, 2017) based on fidelity to the Constitution.

On the other hand, U.S. District Court Judge Amy J. St. Eve obediently whimped out in Mayle v. U.S. (N.D. Ill., Sept. 29, 2017) by regurgitating the sham legal reason of "ceremonial deism" (which states that it's OK for the government to promote the majority religion (i.e., Christianity) by using short phrases such as "In God We Trust," "under God" and "So help me God").

While I find every aspect of the Judge St. Eve's opinion repugnant and contrary to the Constitution, I would like to focus on two points.

First, Judge St. Eve found that compelling Americans to conduct financial transactions with U.S. currency and coins with "In God We Trust" is not a "substantial burden" under the Religious Freedom Restoration Act (RFRA). This is absurd on its face. Because I am an Atheist, I use a black permanent marker to line thru "In God We Trust" on the currency I carry in my wallet. (Too difficult to grind IGWT of coins but I like the idea.) Well, Judge St. Eve, it is at least as much a "substantial burden" as having Christian institutions signing a form saying they don't want to provide contraceptive coverage under the ACA. Actually more so.

Second, Judge St. Eve doesn't understand the Equal Protection argument. In her view, since everyone has to carry the unconstitutional currency, they they are "equal."  That's the wrong comparison.  Rather, the issue is that Congress has shown preference to the majority's religion by mandating a statement of belief in the monotheistic "God" be placed on our coins and currency.  The inequality relates to the Congress's lack of similar endorsements of Atheism and minority religions.  An absolutely blatant violation of the Equal Protection Clause.

The Supreme Court has said in numerous cases that government must remain neutral in matters of religion -- that government may not prefer one religion over another, or religion over nonbelief.  (See, e.g., McCreary County v. ACLU of Kentucky (2005).

Until the Supreme Court rids itself of its morning prayer of "God save this honorable Court" and declares ceremonial deism a sham, Atheists and practitioners of minority religions will continue to be second class citizens in the United States

Robert V. Ritter

The Chief Justice skinks with the ship

The Supreme Court today held that gay marriage is a fundamental right that states cannot deny. Sadly, the Chief Justice and three other justices decided to sink with the Christian Right ship rather than affirm America's core value of equality.

Justice Anthony Kennedy wrote the majority decision in Obergefell v. Hodges, (Sup. Ct., June 26, 2015) and was joined by Justices Ruth Ginsburg, Stephen Breyer, Sonia Sotomayor and Helen Kagan. Kennedy gave four reasons why gay marriage was a fundamental right (Slip Opinion, pp. 12-17). The bottom line is that the majority held that the due process and equal protection clauses of the Constitution "[do] not permit the State to bar same-sex couples from marriage on the same terms as accorded to couples of the opposite sex." (P. 27)

The dissenters were Chief Justice John Roberts and Justices Antonin Scalia, Clarence Thomas and Samuel Alito -- all conservative Roman Catholics.

This reminds me of the 1960 presidential election in which some voters worried that if John F. Kennedy were elected president, he would take orders from the Pope. Then senator, Kennedy responded to this concern in an address to the Greater Houston Ministerial Association on September 12, 1960:

 I believe in an America where the separation of church and state is absolute, where no Catholic prelate would tell the president (should he be Catholic) how to act, and no Protestant minister would tell his parishioners for whom to vote; where no church or church school is granted any public funds or political preference; and where no man is denied public office merely because his religion differs from the president who might appoint him or the people who might elect him.

The Chief Justice, Scalia, Thomas and Alito obviously cannot say the same--for they voted to deny gays the right to marry just as the Catholic Church would want them to.

The Chief Justice sadly tells those who support the decision: "Celebrate the availability of new benefits. But do not celebrate the Constitution. It had nothing to do with it." (P. 29)
This ridiculous statement is consistent with a justice who lacks fidelity to the Constitution, specifically its due process and equal protection clauses.

Like the seemingly unsinkable Titanic, the Christian Right has sunk.

As a final comment, Justice Alito worries that those who oppose gay marriage will be called bigots. He should be worried. Quite frankly, they are bigots because there is no rational basis for their discriminatory belief. Their religion is no excuse. But they are free to be wrong.

Gay Marriage -- The Supreme Court Will Rule "It's Time Has Come"

I had the privilege of attending Tuesday’s oral arguments at the Supreme Court involving gay marriage.  Eventho I got to the Court more than 3 hours before the arguments began a little after 10 a.m., I was number 83 in the bar line and had to listen to the arguments from the attorney’s lounge. Four cases have been consolidated and are collectively go by Obergefell v. Hodges.

The arguments by the states’ attorney—John J. Bursch—were terrible. Perhaps his misfortune was the result of the states not having a rationale (i.e., valid) justification for denying same sex couples the right to marry and he was forced pick a lame excuse out of a bag.

What was the “rationale” Bursch offered as a justification for denying gays the right to marry? He argued that the states have a right to limit marriage to heterosexual couples because the primary purpose of marriage is to ensure that children grow up with their biological parents! Of course, if that was real reason, then states presumably could deny marriage licenses to any man-woman couple who do not intend to have children or could not have children because of infertility. Could a state annul marriages which don’t produce offspring in 3, 5 or 10 years? I suppose the argument could also support outlawing divorce (even in domestic violence situations) because, in the states’ view, the best interests of the child is to keep the child with his or her biological parents. And adoptions? Forget them. Any exceptions? (Gee, your Honors, please ask another question.) Thus, the states one-man, one-woman “class” was over inclusive.

Bursch conceded that a same sex couple could provide a child with a nurturing home environment. Isn’t that the primary consideration for the best interests of the child? In fact, Bursch failed to provide any evidence that a gay parents were inferior to straight couples in meeting the needs of their children. So I felt the state’s case was a big ZERO. On a positive note, Bursch didn’t argue that the 14^th Amendment—which was adopted during the Reconstruction period in 1868—only applied to discrimination based on race.

Justice Kennedy, who is widely believed to be the swing vote, raised the “tradition” card—that marriage has been defined as being between a man and a woman for over a millennia. Sounds a lot like Newton’s First Theory of Motion: an object in motion will stay in motion unless acted on by an external force. In other words, it’s permissible to ignore the rights of gays because we have denied them their rights for a very long time. That’s a sham legal purpose if I ever saw one. Indeed, nowhere in the Constitution does it say that tradition trumps due process. The good news is that the Kennedy recovered later in the argument—perhaps remembering that he wrote the majority opinion supporting the rights of gays in United States v. Windsor (2013) (holding DOMA unconstitutional), Lawrence v. Texas (2003) (holding Texas’s anti-sodomy statute unconstitutional) and  Romer v. Evans (1996) (invalidated Colorado’s Amendment 2 targeting homosexuals). Bottom line, count Kennedy in on holding state laws limiting marriage to a man and a woman.

I was particularly disappointed that Solicitor General Donald B. Verrelli, Jr., didn’t argue that the right of gays to marry is a “fundamental” right.  It would have been an easy argument to make, inasmuch as, the Supreme Court has held fourteen times since 1888 that marriage is a fundamental right. (For a list of the cases, visit http://www.afer.org/blog/14-supreme-court-cases-marriage-is-a-fundamental-right/.) (I suspect that Verrrelli was trying to tone down the government’s position in an attempt to make the case for gay marriage more palatable for justices sitting on the fence.)  Instead, the United States took the position that gays have a right to marry under the Equal Protection Clause—which is reviewed under the lower standard rational basis test.  While the outcome in this instance may ultimately be the same, I believe that Verrelli cheapened gay rights by not arguing both. I would note, for example, that the Court in Loving v. Virginia (1967) held that Virginia’s anti-miscegenation statute violated both the Due Process and Equal Protection Clauses of the 14^th Amendment.

I anticipate that the Court in late June will avoid the fundamental right issue and rule narrowly that denial of marriage licenses to gay and lesbian couples violates the Equal Protection Clause. However, I also anticipate that one or more justices will write a concurring opinion voicing the fundamental right position. Less clear is whether Chief Justice Roberts will join Justices Kennedy, Ginsburg, Breyer, Sotomayor and Kagan—particularly if he wants to leave a legacy as being an eminent chief justice supporting the core American value of equality.

Town of Greece decision deprives Americans of religious freedom

The five-justice majority opinion in Town of Greece v. Galloway was horrendous from a religious freedom perspective. But the four-justice dissent wasn’t much better. Essentially Greece was a 9-0 decision reaffirming the Court’s 1983 Marsh v. Chambers decision which held that legislative bodies may open their meetings with a prayer notwithstanding the First Amendment prohibition against government establishments of religion. 

The majority doesn't give a hoot that America is a diverse society with a significant portion of the population that does not believe in a deity. And the minority merely pays lip service to diversity so long as the prayers are of a Judeo-Christian variety. With six Catholics and three Jews on the Court, the result is not surprising -- none supported the Jefferson-Madison principle of separation of church and state.

From a nonbeliever’s perspective, the majority’s opinion written by Justice Kennedy and the minority opinion written by Justice Kagan merely split hairs about how proselytizing the prayers can be.

The problem is that both sides consider the United States to be a religious nation, whereas the truth is that our Constitution established a secular nation that guaranteed Americans the free exercise of religion and nonbelief.

To buttress this viewpoint, I would note that the Constitution grants governments no powers in matters of religion. There are four provisions of the Constitutions which bare directly or indirectly on religion. Article VI prohibits a religious test for public office. The First Amendment prohibits Congress (and by incorporation the states) from acts respecting establishments of religion AND guarantees the free exercise of religion. And the Fourteenth Amendment guarantees equal protection of the laws (i.e., treat religions and nonbelief equally).

As I said at the beginning, the majority opinion by Justice Kennedy and joined by Chief Justice Roberts and Justices Scalia, Thomas and Alito, is horrendous from a religious freedom perspective. I had little-to-no faith in these Christian dominionist justices. So I was not surprised by their pro-Christian position on legislative prayer.

However I was surprised and deeply disappointed by Justice Kagan’s opinion, joined by Justices Ginsburg, Breyer and Sotomajor. I had hoped that they would throw a bone or crumb to nonbelievers – that they (or at least one or more of them) would opine that legislative prayer is inherently religious and, therefore, excessively entangles government with religion and discriminates against nonbelievers.

Marsh and now Greece should be overturned if nonbelievers are accorded full citizenship and equal dignity. Unfortunately, now in my mid-60s, I don’t expect this to occur during my lifetime. Shame, shame, shame on the Supreme Court of the United States for spoiling the dream of religious freedom.